By: Rich Lenkov
A new bill would make it far easier for employees alleging work-related COVID-19 to prove their case.
- The 4/13/20 Emergency Amendment to the Rules of Evidence, which was later repealed, greatly expanded a “petitioner’s” ability to prove their case. This meant that until an employee began the litigation process, the rule change did not apply to them. This bill fixes that issue, and now calls a COVID-19 claimant an “employee.” This legislation would create a rebuttable presumption from the moment an employee alleges exposure, rather than starting that process when they become a “petitioner.”
- While this bill includes the same laundry list of employees that the previous Rule listed, it does narrow that list by extending coverage only to non-first responder employees that are required to encounter the public or work in locations with more than 15 employees. This fixes prior issues like including stay-at-home teachers. As explained in our prior communications, it made no sense to extend a rebuttable presumption to employees who are at home all day or working with a small number of co-workers.
- This bill calls the rebuttable presumption “strong,” while leaving that term undefined. However, it is obviously meant to create a higher level of a rebuttable presumption, as the qualifier “strong” is not used in other rebuttable presumptions, like that afforded to utilization review.
- The bill increases the standard of review to clear and convincing evidence, meaning that the employer must provide evidence that is “substantially more probable to be true.” This is a more difficult standard for an employer to meet than the burden of proof in all other areas of Illinois workers’ compensation, which is proof by a preponderance of evidence, meaning that the evidence is “more likely than not to be true.”
- The bill limits the type of evidence that an employer can present to rebut the presumption to three scenarios:
- The employee was working from home or on leave from work for 14 or more days prior to their incapacity due to COVID
- The employer provided a safe workplace (i.e. social distancing, PPE, etc.)
- The employee was exposed to the virus by an alternative source
One obvious problem is that Illinois workers’ compensation does not provide for formal discovery. How would an employer prove, especially by clear and convincing evidence, that an employee was exposed to the virus by an alternate source without also providing investigative tools like interrogatories and depositions?
The language is still being worked on by both sides, but it is a dramatic and dangerous overreach. It greatly expands the ability of thousands of workers to allege work-related COVID-19, without any real evidentiary or legal foundation. It is likely to be fast-tracked by the Democrat-controlled House and Senate and signed by Democrat Gov. JB Pritzker.
We encourage our readers to immediately and loudly voice their opposition to this overbroad legislation.